IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – GRAHAMSTOWN)

								CASE NO: CA&R 87/2013
								DATE HEARD: 24/04/2013
								DATE DELIVERED: 06/05/2013

In the matter between

ZOLILE WILLIAMS GOTYIWE

and 

THE STATE

Nature of matter:  Criminal law – appellant charged with assault with intent to do grievous bodily harm – sentenced to three years’  imprisonment -appeal against conviction & sentence

Order:  Sentence imposed by the court a quo is set aside and substituted with a sentence of twelve (12) months’ imprisonment, nine (9) months of which is suspended for three (3) years on condition that the appellant is not convicted of an offence involving violence to the person of another, committed during the period of suspension, and for which the appellant is sentenced to unsuspended imprisonment without the alternative of a fine.

JUDGMENT

ROBERSON J:-

[1]	The appellant was charged in the Magistrate’s Court, Kwa Nobuhle, with assault with intent to do grievous bodily harm.  He was convicted and sentenced to three years’ imprisonment.  This appeal is against sentence, with the leave of the trial court.

[2]	The appellant and the complainant are neighbours, and are both pensioners.  At the time of the offence the appellant was aged sixty three years and the complainant sixty five years.  Prior to the assault there was animosity between them because the complainant accused the appellant of constructing a garage in the complainant’s yard.  According to the complainant, on the day of the assault the appellant, who appeared angry, approached him while he was in his yard and accused him of making unwelcome remarks about the yard (presumably about the construction of the garage).  The appellant then assaulted the complainant with a gardening tool, which was described as consisting of a wooden handle with a metal part attached to it.  The complainant suffered a seven centimetre laceration to his cheek, bruising above his eye and a distal tibia/fibula fracture.  The complainant mentioned in evidence that his jaw had been broken but the medical records which were handed in are unclear about such an injury.  The doctor who examined the complainant on the day of the assault noted that the injuries observed were “suggestive of being sustained from sharp and blunt object”.  After the assault, the appellant ran away.

[3]	When the complainant testified, some two and a half months after the assault, he was using crutches and his leg was still in plaster.  There was also a dressing on the wound on his cheek, which had not yet healed.  He said that prior to the assault he had been self-employed as a taxi driver but was now unable to pursue this business.

[4]	As already mentioned, the appellant is a pensioner, earning what appears to be a state pension.  He is married with seven children, four of whom live with him and his wife.  His only previous conviction involving violence was in 1968 for assault with intent to do grievous bodily harm.  Subsequent convictions were for traffic related offences, the last of which was in 1995 for driving a motor vehicle under the influence of alcohol.

[5]	A correctional supervision report was obtained.  According to the correctional official, the appellant took responsibility for his conduct and expressed remorse.  The appellant is willing to receive therapy in order to improve his social functioning and his family is willing to support him if he is sentenced to correctional supervision.  The commission of further offences can be prevented by psychological intervention, rehabilitative programmes and strict monitoring.  The correctional official considered the appellant to be a suitable candidate for a sentence of correctional supervision in terms of s 276 (1) (h) of the Criminal Procedure Act 51 of 1977.

[6]	When addressing the trial court in mitigation, the appellant’s attorney stated that the appellant had sent his wife and brother-in-law to ask for forgiveness from the complainant.  According to the complainant they spoke to his wife and she did not accept their apology.  The magistrate asked the complainant what sentence he would like to be imposed and his response was that he did not want the appellant to compensate him for his injuries, and he was going to consult his lawyer.  When questioned by the prosecutor about a correctional supervision sentence, he seemed indifferent as to what sentence was to be imposed and was more concerned about recovering his health. 
[7]	In sentencing the appellant, the magistrate said that she took into account his personal circumstances.  She mentioned specifically his responsibilities as a father and husband and the fact that he supported his family.  She also took into account his age “as per charge sheet”.  The age of the appellant on the charge sheet was recorded as fifty six years.

[8]	Apart from briefly mentioning the prevalence of the offence, the magistrate spent the bulk of her judgment on the seriousness of the offence and the effect on the complainant.  She said inter alia that the complainant sustained “very major injuries and permanent damage”, and  

“Whilst looking at your age the Court also look at the age of this complainant that he has been permanently assaulted and received injuries from this age of the accused person.”

She said further that the appellant had taken advantage of the complainant and that 
“………  you were not acting human on the day in question.  You were not human looking at the age of this complainant before you were hacking him.  This defenceless complainant, who is not a danger to your life.  Even today the problem that is between yourself and the complainant has not been sorted out, because you built your garage in the property or in the side of the yard of the complainant.  That is being taken advantage of a harmless person like the complainant, a down to earth person who is harmless who is not really a danger to you, sir.”

[9]	In my view these extracts contain several misdirections.  There was no evidence of permanent injury to the complainant.  The magistrate seems to have been of the view that there was a significant age gap between the appellant and the complainant, whereas they were almost the same age.  The magistrate appears to have accepted and taken into account in aggravation that the appellant had unlawfully constructed a garage on the complainant’s property, whereas that dispute appears to be unresolved and ongoing, and its merits unknown.

[10]	Overall, the magistrate clearly over-emphasised the seriousness of the offence and paid insufficient regard to the appellant’s personal circumstances.  The language she used was rightly described in the appellant’s heads of argument as “emotional” and painted an inaccurate picture of the appellant as an unfeeling person who preys on the weak, whereas, as was submitted, the conduct of the appellant arose from the tension between him and the complainant.  The magistrate made no mention of the appellant’s attempt to apologise to the complainant or of his expression of remorse to the correctional official.

[11]	With regard to the correctional supervision report, the magistrate said that she had read it but went on to say that the appellant was not a first offender with regard to this type of offence, even though the previous conviction was very old.  This was a further misdirection.  When one considers the very long time that had elapsed since the previous conviction, the youthfulness of the appellant at the time of that conviction, and his abstention from violent crime in the interim, it bore negligible relevance.  

[12]	Two further aspects should be mentioned.  The magistrate said that she balanced the appellant’s personal circumstances with the interests of society and “the interest what the complainant expects from the Court to do”.  This was a further indication of an over emphasis of the effect of the offence on the complainant.  The complainant was not interested in accepting an apology or compensation, and by allowing his attitude to influence her, the magistrate failed properly to consider other sentence options.  Further, when postponing the matter for a correctional supervision report, the magistrate said the following to the appellant’s attorney:

“Ms Mandela although I am not anticipating the sentence, but I have to say to you, one of might be a way out to the accused for a direct imprisonment, is a serious compensation to the complainant’s injuries.”

This extract suggests that the magistrate had already decided that a sentence of direct imprisonment was appropriate, in the absence of compensation, and that her mind was not open to argument in support of an alternative sentence.  It was submitted on behalf of the appellant, correctly in my view, that such an approach bordered on a capricious exercise of her sentencing discretion.  As it turned out, the complainant did not want compensation and direct imprisonment was imposed.

[13]	In view of these various material misdirections which resulted in a sentence which I consider disturbingly inappropriate in all the circumstances, this court may interfere with the sentence which was imposed.  The appellant has already served three months of his sentence because the magistrate refused to grant the appellant bail pending appeal, predicting that even if another court had a different view on sentence, it would still impose direct imprisonment.  The appellant successfully appealed against the magistrate’s refusal to grant bail pending appeal.
   
[14]	It was submitted on behalf of the appellant that a non-custodial sentence would be appropriate, even if it were correctional supervision in terms of s 276 (1) (h) of the Criminal Procedure Act 51 of 1977.  Counsel for the State very fairly conceded that the sentence is disturbingly inappropriate, and submitted that the unserved portion of the sentence should be suspended..

[15]	This was a serious assault inflicted with a potentially dangerous implement, but in all the circumstances of the case, I do not consider that it warrants direct imprisonment.  The appellant could effectively be considered a first offender for this type of offence and considering the age he has reached without transgressing further, cannot be considered a threat to society.  For the most part, he has led a responsible life.  He expressed remorse and tried to apologise.  He therefore has insight into his conduct and accepts that he acted unlawfully and caused harm.  The assault arose from an existing poor relationship concerning the construction of a garage.  While the assault was severe, there was no evidence that the complainant was permanently disabled and would not eventually be able to resume his taxi business.  In all these circumstances the appellant is not a person who should be removed from society.  

[16]   Although I am of the view that a sentence of correctional supervision in terms of s 276 (1) (h) of Act 51 of 1977 would have been a suitable sentence, I must have regard to the fact that the appellant has already undergone punishment and that the three months he spent in prison should be incorporated in an alternative sentence which will result in the appellant not serving any further time in prison.

[17]   The following order is made:

[17.1]   The sentence of three years’ imprisonment imposed by the magistrate is set aside and substituted with a sentence of twelve (12) months’ imprisonment, nine (9) months of which is suspended for three (3) years on condition that the appellant is not convicted of an offence involving violence to the person of another, committed during the period of suspension, and for which the appellant is sentenced to unsuspended imprisonment without the alternative of a fine.

[17.2]   The sentence is ante-dated to 11 December 2012.    

______________
J M ROBERSON
JUDGE OF THE HIGH COURT

REVELAS J:-

 I agree

___________
 E REVELAS
JUDGE OF THE HIGH COURT

Appearances:-
For the Appellant:  Adv A Hattingh, instructed by Neville Borman & Botha Attorneys, Grahamstown

For the Respondent:  Adv S S Mtsila, instructed by Director of Public Prosecutions, Grahamstown